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Comments on the STL’s approach to corporate criminal liability

This is the second of three posts intended to preview the STL’s contempt trial which starts on Thursday 16 April 2015 and involves a corporate defendant – Al Jadeed SAL. Also on trial is Ms Karma al Khayat, but these three posts focus on the legal person because the prosecution of a company at an international criminal tribunal is such a novel development.

My first post summarised the STL’s five decisions on jurisdiction over legal persons. This (second) post offers brief comments on the STL’s approach. A number of the STL’s decisions have been subjected to detailed comments and analyses elsewhere. Rather than repeat points made in such analyses, I briefly summarise some of them below and provide links, before making some limited observations of my own.

The critical reception to the STL’s approach to corporate criminal liability

Scholars and commentators quickly criticised Judge Baragwanath’s decision of 31 January 2014 that the STL’s contempt jurisdiction extends to legal persons. Dov Jacobs described it as an example of “judicial vigilantism” which will “one day turn out to be a nightmare for those who genuinely are trying to promote due process and the rule of law.” He criticised the logic of the different results in relation to the STL’s primary jurisdiction (which was said to be limited to natural persons) versus its contempt jurisdiction (which extended to legal persons). Yvonne McDermott Rees similarly described Judge Baragwanath’s reasoning as “questionable”, an example of “judicial activism” and “perhaps not ‘[the STL’s] most well-reasoned decision to date.” Karlijn van der Voort queried whether Judge Baragwanath’s decision would nevertheless “lay a foundation for further development of liability of corporate entities in international criminal law.”

Commentators returned to attack the Appeals Chamber’s majority decision in Al Jadeed SAL which, following Judge Lettieri’s refusal to follow Judge Baragwanath’s lead, reversed Judge Lettieri and confirmed the STL’s contempt jurisdiction over legal persons. Dov Jacobs described the majority’s approach as a “molotov cocktail on the principle of legality”, namely the combination of the majority’s reliance on (1) the spirit of the law, together with (2) inherent jurisdiction over contempt. Yvonne McDermott Rees criticised the “illogical consequences” whereby corporate liability only attached to contempt offences and suggested that a wiser approach would have been to base the decision more squarely on the relevant provisions in Lebanese law. Anne-Marie Verwiel and Karlijn van der Voort described the majority’s “idealistic approach” as unconvincing and lacking a “strong legal basis for the future development of corporate criminal liability.” In a further post, Anne-Marie Verwiel and Karlijn van der Voort criticised the majority’s reliance on non-binding international provisions and described the decision as “groundbreaking” but “questionable”.

As for the Appeals Chamber’s most recent (unanimous) decision in Akhbar Beirut SAL, Yvonne McDermott Rees described it as “the most coherent on the issue of jurisdiction over corporations for contempt offences”. She praised its increased reliance on Lebanese law as being “much more convincing than earlier decisions that referred to the vague principle of ending impunity or strained textual analyses of the Statute and Rules”.

My comments

1. An obvious point

First, the obvious point that the extent of the STL’s back-and-forth on the question of corporate criminal liability over the past year has been remarkable. We have seen judicial reasoning honed and amplified. Although Judge Baragwanath and the majority of the Appeals Chamber in Al Jadeed SAL relied on Lebanese law to justify a finding that the STL’s contempt jurisdiction includes legal persons, it is probably fair to say that the Appeals Chamber’s most recent decision in Akhbar Beirut SAL represented a greater retreat to the STL’s Lebanese character. Arguably this diminishes the significance of both cases for corporate criminal liability in international criminal law in general. But it remains to be seen how Judge Lettieri will fill in the details of corporate criminal liability and the weight he will give to Lebanese law. Notably, in his decision in Al Jadeed SAL in which he held that he did not have jurisdiction over legal persons, he concluded that corporate liability in Lebanese law was “inapplicable” because the provisions of the Lebanese Criminal Code applicable at the STL are “subject to the provisions of the [STL’s] Statute” (para. 78).

2. A point in defence of jurisdiction over legal persons

Secondly, a point that might answer some of the criticisms that Judge Lettieri made of Judge Baragwanath and the Appeals Chamber. From an English-law perspective, the various STL judges’ (differing) approaches to the interpretation of “person” all seem somewhat unusual. Recall that Judge Baragwanath proceeded on the quite cautious basis that “person” did not clearly exclude legal persons. The Appeals Chamber also considered that “person” is “ambiguous”, then adopted a purposive approach to interpretation. In contrast, Judge Lettieri was clear that “person” means natural persons, to the exclusion of legal persons.

All of these approaches would be unusual in English law because the Interpretation Act 1978 provides that, subject to an apparent contrary intention, the word “person” in a statute or subordinate legislation is to be construed as including “a body of persons corporate or incorporate” (see ss. 5 and 11, schedules 1 and 2, Pt 1, para 4(5) (Appendix B-5). And there have been a number of well-known recent prosecutions of companies for contempt. (See, for example, here and here).

An instinctive reaction might be that the Interpretation Act 1978 is precisely what Judge Lettieri had in mind when he referred to “explicit provisions” in national jurisdictions. Such a reaction is arguably erroneous. There is a suggestion that the Interpretation Act 1978 merely reflects a long-standing common law presumption, relevant to the interpretation of statutes, that “person” includes “legal persons”, without the need for explicit provision. For instance, Blackstone’s Commentaries on the Laws of England summarised that:

Persons are also divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us: artificial are such as created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic.

On the other hand, the Interpretation Act 1889, section 19, was the first statute to stipulate that “person’ shall, unless contrary intention appears, include any body of persons corporate or unincorporate”. This legislation followed the House of Lords’ decision in Pharmaceutical Society v London and Provincial Supply Association (1880) 5 App Cas 857which held that “person” in the Act then under consideration did not include a company. The Lord Chancellor (Lord Selborne), Lord Blackburn and Lord Watson each had regard to the object and purpose of the legislation in concluding that it did not apply to a corporation. Of particular note, Lord Blackburn held (at 869):

It is plain that in common conversation and ordinary speech, “a person” would mean a natural person: in technical language it may mean the artificial person: in which way it is used in any particular Act, must depend upon the context and the subject-matter. I do not think that the presumption that it does include an artificial person, a corporation, if that is the presumption, is at all a strong one.

In their book on the Interpretation of Legal Texts, Antonin Scalia and Bryan Gardner describe a basic canon of American interpretation whereby the word “person” includes corporations. They explain that this presumption has been known to rankle non-lawyers when they encounter it, but the legal meaning of person is, they say, “age old” – and not dependent on a prior legislative provision.

It might be argued that international law does not follow such domestic law approaches. (For example, the Vienna Convention on the Law of Treaties 1969 provides that treaty provisions should be given their “ordinary meaning … in their context and in light of [the treaty’s] object and purpose.”) But even if that is right, Judge Lettieri seems to have erred in his research when unable to find any domestic jurisdiction which considers “person” to include legal persons without prior specific provision. Moreover, it is not clear to me why the ordinary meaning of “person” in international law should not include legal persons. If the ordinary meaning of “person” did not encompass legal persons, one might question why the drafters of the ICC Statute (see Article 25(1)), ICTR Statute (see Article 5) and ICTY Statute (see Article 6) saw the need to specifically limit the jurisdiction of those courts to “natural” persons. (There is no such specific limitation in the STL’s Statute.) Might there be an argument that Judge Baragwanath and the Appeals Chamber could have been even more assertive in their interpretation of “person”?

3. A point undermining the STL’s jurisdiction over legal persons

Thirdly, a point that potentially undermines the ultimate finding that the STL has contempt jurisdiction over legal persons. As others have noted, the odd result of the STL’s decisions is that the STL’s primary (statutory) jurisdiction is apparently limited to natural persons but its (inherent) contempt jurisdiction is not so limited. The justification given for that distinction seems to turn on the use of gendered language in the STL’s Statute, contrasted with the use of “person” in the STL’s Rules. That does not seem to be a very strong basis on which to differentiate scenarios of personal jurisdiction. Should gendered language, or the lack of reference to an “it”, be so important? The European Convention on Human Rights does not refer to an “it”, but enshrines numerous rights relied upon by companies.

More problematic, however, is that whereas the penalty provisions in the STL’s (judge-made) Rules relating to contempt provide for fines as well as imprisonment, the STL’s Statute appears to limit any available penalty to imprisonment (seeArticle 24: “The Trial Chamber shall impose upon a convicted person imprisonment for life or for a specified number of years.”) Does this express provision of the STL’s Statute, by necessary implication, limit the STL’s inherent jurisdiction to natural persons? In the event of a conviction, would Lebanon consider itself obligated to enforce a financial penalty imposed upon a legal person?

4. The point we have reached

Finally, although the existence of corporate criminal liability at the STL has been controversial, the key point remains that the rubicon has now been passed. Judge Lettieri will have to consider and apply the relevant elements of corporate liability. It will be a significant trial because it is likely that questions over corporate liability in international law will continue to arise. And in future corporate liability might not be limited to the crime of contempt. Judge Lettieri’s approach could therefore have broad implications.

My third post, to be published on Thursday 16 April 2015, will move on to preview some particular issues that might be expected to arise during the course of this novel and important trial.